US labels say that copyright law “isn’t working”

September 2010

COPYRIGHTInternet, record labels

Speaking at the Technology Policy Institute’s Aspen Forum, The President of the Recording Industry Association of America, Cary Sherman, has said that the current U.S. copyright law “isn’t working” for content owners and contains a number of loopholes – the main one he objected to is, of course, the safe harbour protection given to internet service provides (ISPs), web companies and telecomms providers. According to CNet, Sherman said the 1998 Digital Millennium Copyright Act “isn’t working for content people at all,” saying “You cannot monitor all the infringements on the Internet. It’s simply not possible. We don’t have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare.” Sherman added that YouTube is doing a good job of filtering and removing copyright-infringing videos but added that Google could do much more than simply having YouTube remove videos making the example that “If you enter in “Beyoncé MP3” as a Google search the “the chances are, the first thing you’ll see is illegal sites.” In response Lance Kavanaugh for YouTube, said that the DCMA is working exactly as Congress intended it to. “There’s legal plumbing to allow that to happen, to allow those small companies to innovate without [the] crushing fear of lawsuits, as long as they follow certain rules,” he said. “Congress was prescient. They struck the right balance”. Youtube recently avoided liability in a case brought against them by Viacom, owners of MTV, for hosting MTV content without Viacom’s permission because they operated a take-down system although Viacom plan to appeal the decision.

Sherman’s comments, on an Act which was heavily lobbied over by ISPs, internet companies and the content owners – is based on the growing concern that the Act contains real and dangerous loopholes (well, dangerous for content owners) which allow ISPs and other web-based companies to ignore online copyright infringement without any legal comeback – although despite his concerns, Sherman added that he did not see new legislation as the solution to this at this stage – preferring to reach agreements with web firms directly. He explained: “We’re working on [discussions with broadband providers], and we’d like to extend that kind of relationship – not just to ISPs, but search engines, payment processors, advertisers. But Sherman then added “if legislation is an appropriate way to facilitate that kind of cooperation, fine” saying it may be necessary for the U.S. Congress to enact a new law formalizing agreements with intermediaries such as broadband providers, Web hosts, payment processors, and search engines – one presumes the RIAA are contemplating asking the US legislature for new laws along the same lines as the various “three strikes” laws passed in the UK, France, Taiwan, South Korea and New Zealand.

The RIAA have also signed up to a new letter sent to Google and US ISP Verizon regarding their recent announcement on so called “net neutrality”. The consortium of American content owners which included indie labels body A2IM and collecting societies BMI, ASCAP and SESAC, called on the two web giants to add cracking down on piracy to their joint mission.

Interestingly in related news, online advertising firm Triton Media is being sued by several movie studios for “contributory” and “induced” copyright infringement, over its alleged dealings with unauthorized websites offering their content for free. Disney and Warner Bros filed suit against Triton, alleging the firm helped websites like PirateCity.org and Watch-Movies-Links.net profit from piracy by handling their advertising sales. The studios said the advertising agency knew the sites were offering unauthorized content because they sent notices to Arizona-based Triton. The lawsuit seeks an injunction against Triton providing advertising services to the sites in the future, and unspecified monetary damages.

In other RIAA news, Joel Tenenbaum, the Boston University graduate student who lost his case against the recording industry for illegally downloading and sharing music has said that he will be appealing a federal judge’s order that he pay four record labels $67,500 in damages for copyright infringement, even though that amount is only a tenth of what a jury said he should pay for copyright infringement on 30 songs. The original order was a whopping $675,000. “Sixty-seven-and-half thousand dollars only sounds reasonable because it was so much before’’ said the 26-year-old former Providence resident, who then added that he would have to declare bankruptcy if forced to pay the smaller award. His lawyer, Harvard Law professor Charles Nesson, has filed a one-page notice saying he will appeal with the US Court of Appeals for the First Circuit. Nesson said in an interview that he plans to challenge several rulings Judge Nancy Gertner made at trial, including her refusal to let jurors hear that Tenenbaum offered to settle the labels’ claims against him in November 2005 for $500. The four record labels who brought the action (Sony BMG, Warners, Arista and Universal) have filed a similar notice and RIAA spokesperson Cara Duckworth said in a statement yesterday that the labels “had no choice but to appeal the erroneous and unprecedented decision’’ by Judge Gertner on July 9 to slash the award by 90 percent”. “The ruling casts aside a jury verdict squarely within the range established by Congress and clearly supported by the undisputed harm to the recording industry and the egregiousness of the defendant’s conduct,’’ she said.